The U.S. Department of Labor (DOL) recently issued a final rule amending its definition of “spouse” under the Family and Medical Leave Act (FMLA) to extend FMLA protection to legally married employees with same-sex spouses, regardless of where they live. The DOL’s final rule codifies its view—announced in its June 27, 2014, Notice of Proposed Rulemaking—that all legally married couples, whether opposite sex or same-sex, should have consistent federal family leave rights, even if state family leave rights are inconsistent.

When originally enacted by Congress in 1993, the FMLA defined “spouse” as “a husband or wife, as the case may be.” Recognizing that “marriage” was a matter of state law and that different states had different standards for creating or recognizing such legal unions (e.g., age of consent, “common law,” etc.), the initial FMLA regulations, published by the DOL in 1995, clarified that when an employee lived in one state and worked in another, the state of residence would determine “marriage” and thus eligibility for FMLA spousal leave (the “place-of-residence” rule). In 1996, in response to concerns among opponents of same-sex marriage, Congress passed the Defense of Marriage Act (DOMA), which in Section 3 defined “marriage” and “spouse” for purposes of all federal laws, regulations and administrative interpretations as only a legal union between a man and a woman. With DOMA in place, FMLA unequivocally applied to opposite-sex couples only, as far as spousal leave was concerned.

Things changed significantly, but not completely, on June 26, 2013, with the U.S. Supreme Court’s landmark ruling in United States v. Windsor, which struck down Section 3 of DOMA as unconstitutional. This meant the FMLA definition of “spouse” could no longer be limited to opposite-sex marriages; same-sex couples who were lawfully married were not automatically barred from the FMLA’s protection. However, because the FMLA’s “place of residence” rule still was in effect, the law’s spousal leave protection did not extend to same-sex couples who were lawfully married in states that recognize same-sex marriage, but worked in or later moved to states that do not.

The DOL’s final rule fixes that inequity. The new rule’s definition of “spouse” expressly includes marriages that are lawful in the state where they were performed (the “place of celebration” rule), expanding FMLA protections to legally married same-sex couples regardless of where they live. Like any other legally married couple, they now may take job-protected leave for the serious health condition of a covered spouse, or in connection with the covered spouse’s military service. In its press release announcing the final rule, the DOL explained that “[t]he basic promise of the FMLA is that no one should have to choose between the job and income they need, and caring for a loved one.”

In light of the final rule, employers should review their employee handbooks, practices, procedures, and training programs to ensure that employees in same-sex marriages can take advantage of FMLA leave to the same extent as their co-workers in opposite-sex marriages, free from interference or retaliation. Employers also should stay abreast of same-sex partner developments affecting state leave laws in the states where they have employees, since the legal landscape is changing quickly in the wake of Windsor.

Attorneys in Ballard Spahr’s Labor and Employment Group can assist clients in FMLA compliance and other workplace issues. If you have questions, please contact the member of the Group with whom you work.


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